​The Michigan Motor Vehicle Code, MCL 257.35a, provides the following: “‘Operate’ or ‘operating’ means being in actual physical control of a vehicle regardless of whether or not the person is licensed under this act as an operator or chauffeur.” The issue of operating usually comes up when a person is found asleep behind the wheel of a parked or otherwise nonmoving vehicle. The sleeping driver is one of the most contentious remaining legal issues in drunk driving prosecutions. It is often argued that the essential element of operating is missing when a defendant is arrested after being found asleep.

In People v Pomeroy (On Reh’g), 419 Mich 441, 355 NW2d 98 (1984), the Michigan Supreme Court held that a person sleeping in a motionless motor vehicle was not “operating” that vehicle within the meaning of Michigan’s drunk driving laws. Based on Pomeroy, the Michigan Court of Appeals ruled that the drunk driving arrest of intoxicated sleeping persons in motionless motor vehicles was illegal because the offense was not committed in the officer’s presence. Thus, all evidence obtained from that illegal arrest was tainted and subject to suppression. See People v Spencley, 197 Mich App 505, 495 NW2d 824 (1992) (results of breath test were suppressed because warrantless stop and arrest was illegal).

However, in People v Wood, 450 Mich 399, 538 NW2d 351 (1995), the Michigan Supreme Court revisited this area and overruled Pomeroy to the extent that it held that a person sleeping in a motionless motor vehicle could not be held to be currently operating a motor vehicle. Instead, the Wood court reasoned that once a person put a motor vehicle “in motion, or in a position posing a significant risk of causing a collision,” he or she “continues to operate it [even if asleep] until the vehicle is returned to a position posing no such risk.” Id. at 405. Note that in Wood, defendant was discovered passed out, slumped over the steering wheel, with his foot on the brake and an open bottle of beer between his legs. Obviously, defendant had not returned the vehicle to a position that posed no risk of injury or damage to other persons or property.

In People v Longeway, 296 Mich App 1, 818 NW2d 419 (2012), defendant was arrested for OWI on a tip from a martini bar doorman who told the police that a vehicle had struck a concrete barrier earlier in the evening and that the occupants left the bar later and appeared to be drunk. The officer observed the car in the parking lot with the backup lights on while waiting for another car to leave and then saw those lights go off and the car settled as if the transmission had shifted to park. The court held that defendant had operated a motor vehicle within the meaning of MCL 257.625(1) because she had “actual physical control” of the vehicle as set forth in MCL 257.35a. A person clearly has actual physical control of a vehicle when starting the engine, applying the brakes, shifting the vehicle from park to reverse, and then shifting back to park.

In People v Lechleitner, 291 Mich App 56, 61, 804 NW2d 345 (2010), the court rejected defendant’s contention that the decision in Wood was outmoded and that the definition of operating should be “to cause to function.” Instead, the court of appeals followed Wood with its focus on the danger of a collision with a vehicle operated by a person under the influence of intoxicating liquor. In Lechleitner, defendant drove on a slippery freeway while his BAC was above the statutory limit and lost control, striking the right and left guardrails and coming to a stop in the middle of the freeway, blocking both lanes. While defendant turned on his hazard lights and attempted to push his truck with his leg, another driver swerved and then stopped on the shoulder. A third car swerved to miss defendant’s vehicle and struck the car on the shoulder, killing that motorist. MCL 257.625(4) provides that a defendant may be convicted where he “operates a motor vehicle” while intoxicated and “by the operation of that motor vehicle causes the death of another person.” This provision does not require that the defendant’s vehicle be in motion at the time of the accident but rather that the victim’s death be caused by the defendant’s operation of the vehicle while intoxicated. In this case, defendant was intoxicated, operated his vehicle, and crashed it, with the result that it sat in the middle of the freeway at night creating a risk of injury or death to others.

Following the Wood decision, and to remedy the perceived drunk driving loophole created by Spencley, the Michigan legislature amended the drunk driving arrest statute to authorize a warrantless arrest for offenses not committed in the officer’s presence of persons “found in the driver’s seat of a vehicle parked or stopped on a highway or street … if any part of the vehicle intrudes into the roadway” if reasonable cause exists to believe that the person had been operating the vehicle in violation of the drunk driving laws. MCL 257.625a(1)(b).

Circumstantial evidence can permit an inference that a defendant was previously operating a vehicle with bodily alcohol content. People v Solmonson, 261 Mich App 657, 638 NW2d 761 (2004). Solmonson was found unconscious in the driver’s seat of a vehicle that was parked on the edge of a roadway. The vehicle was not running, but the engine was warm and the keys were in the ignition. There was an open can of beer between Solmonson’s legs, five more cans of beer in the passenger seat, and another empty can in the back. The court of appeals ruled that while defendant was not “operating” the parked vehicle at the time he was discovered by the police, there was sufficient evidence allowing the inference that the defendant drove the vehicle to the location where he parked and that he was intoxicated at that time.

A police officer had reasonable cause to arrest defendant for drunk driving after finding defendant asleep in the front seat of his parked vehicle, which was lodged atop a parking log. People v Stephen, 262 Mich App 213, 685 NW2d 309 (2004). While the officer did not see Stephen operating the truck, Stephen admitted that he had driven to the parking lot to sleep off the effects of having had too much to drink. Stephen also admitted that he subsequently got the truck stuck on the log, at which point he turned off the engine and went to sleep. MCL 764.15(1)(d) permitted the valid arrest because the officer had reasonable cause to believe defendant had committed a 93-day misdemeanor. An officer does not have to observe a defendant operating a vehicle to make a drunk driving arrest under MCL 764.15(1)(d).

The places where operating must occur to constitute a violation include not only highways and places open to the general public but also those areas generally accessible to motor vehicles, including an area designated for vehicle parking. MCL 257.625(1). Drunk driving prohibitions apply to the operation of a vehicle on private as well as public property when an accident causes the death or serious impairment of a body function of another person. MCL 257.625(4), (5).

The charge of operating while intoxicated causing death (MCL 257.625(4)) does not require a showing that the defendant was operating in an intoxicated manner, only that he or she was operating while intoxicated. People v Schaefer, 473 Mich 418, 703 NW2d 774 (2005), overruling in part People v Lardie, 452 Mich 231, 551 NW2d 656 (1996). According to the Schaefer court, the statute plainly requires that the victim’s death be caused by the defendant’s operation of the vehicle, not the defendant’s intoxicated operation. The Lardie court had erred by placing an extra burden on prosecutors to show that the defendant’s intoxicated driving was a substantial cause of the victim’s death.​A person sitting in the passenger seat who grabs the steering wheel takes “actual physical control of a vehicle” under the statutory definition of operate in MCL 257.35a. People v Yamat, 475 Mich 49, 714 NW2d 335 (2006) (ruling that prosecutor established sufficient probable cause that defendant violated felonious driving -statute).